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Show CORY ESSSV' MONDAY, NOVEMBER 26. 1973 PAGE THE DAILY RECORD SEVEN In The Supreme Court Of The State Of Utah protection a commercial insurance company ha8 against any industrial, lexicological or judicial alchemy that otherwise virtually would transmute a simple accident policy into a health policy or a life insurance policy At this juncture, it would appear only appropriate to examine the authorities relied upon by counsel for plaintiff in support of their thesis that the unusual pressure or "stress and strain," with which Judge Elton allegedly was burdened in the last months of his life, represented a compensable "accident" under the terms ol the group policy having to do with accidental injury andor death. We think such authorities justifiably can he represented by four of the cases they have cited, a nd for convenient e are chronologically reviewed. Suicide, bacterial infection, medical or surgical treatment, hernia, war, accidents in military service while country is at war, aeronautics. .16. Pierce v. Pac. Mut. , 7 Wash. 2d 151, 109 P.2d 322 Thompson v. American Cas. , 20 Utah 2d 418, 439 P. 2d 276 (1968), Whitlock v. Old Amer. Ins. Co.. 21 Utah 2d 131, 442 P. 2d 26 (1968); Dienes v. Safe o U.fc, 21 Utah 4-5- (19-11)- ; P. 2d 468 (19681. . In Pierce, unlike our instant case, which was not bn sed on negligence of anyone, the insured buildtil his case on "(right" caused by Ibe negligent driving of a motorist. The Washington court took the position that under an accident policy 'fright' causi-- by negligence of a motorist in an obvious "split second" accident, might be classified, as an "accident" under Ibe policy, if the negligence ol d- f ndant was the proximate cause. of the ''fright." No - only pressure of work negligence is claimed or involved in Ihe instant erase. voluntarily assumed, but not induced or forced upon anyone by a third party's d motor vehicle incident. The court in Pierce negligent act in a was not hesitant, however, in pointing out that "such physical injuries" were distinguishable from purely menial stress or psychological disorders, although elsewhere it said "mental., emotional or physical activity are causes of cerebral hemorrhages." (In the instant case there is no question about the hemorrhage occurring a year before.) It rjid not say that such la tier circumstances compelled any synonymity with a split second traffic accident. The cases are not at all parallel and Pierce certainly is not dispositive here bottomed on favct or reasoning applicable to construction of contra ts or the common do meaning of the word "accident as applied to insurance policies having to with "accidents." It is significant to note that the Pif rce ase llself confined ' the concept of cause and effect in an ''accident-- case to a happenstance, a suddenness, so to speak, when it said thai all of the definitions oi accident "include the idea that the means as well as the result must he unforeseen. a involuntary, unexpected and 'unusua 1; that it must he happening by chance. of recovery uivkr the. conSuch a conception excludes completely any rigi.t of any jury finding to Ihe irrespective trolling facts of the instant case. an appellate court's contrary, - and there is no answer :o the proposition ihe to an examine fallibility of .'em remen. existence encompasses obligation 2d 147, 442 I d -- - split-secon- -- tl-a- The Thompson case, stated by plaintiff' s counsel as being "remarkably similar" to the instant case, may be similar in one aspect, but hardly "remarkthat it in the ably" so. That case, involved a similar insurance policy ' me.-ns'directly and by "accidental provided coverage for an injury caused " d t ided on motion for sumThe case was independently oall other causes. 60, taken mary judgment. In view of the record, indicating that Thompson, of to an unusual (ask drilling a from his regular work and for five days put hole m a cement wall, in confined quarters under intense heat, lrquiring the use of a 35 to 40 pound jackhammer, causing exhaustion at the end of each of a seizure he day, we. said there was a genuine fact issue as to causa; ion . had. His medical history included an arteriosclerotic problem, prefaced by a hea4 injury 24 years before, hut no evidence, as prevails in the instant n iJ.v.c nt lor most ol the time during case, of a lingering, progressive t a to 16 third months prior successive stroke, alter which a period of about of fact tor which the caBe Judge Elton shortly passed away. The genuine issue was returned for trial, patently sc- ms to he ebneerned with the "accidental means" incident to the plain terms of the policy, and whether it was the sole cause of the disablement. In sending it back under such circumstances, it would belie the position of this court to the effect that aggravation cases, so since the term heavily relied on by plaintiff, could not be dispositive. of causes. That the a but one not multiplicity "aggravation" itself suggests where not determinative our workmen's compensation cases are in opinion 17 is reflected in our own language in Thompson, that aggravation is a factof, one issue having bren raised by defendant as to whitnc r the disability resulted from accidental means "directly and independently of ill other causes," the , a direct, independent cause, jury cannot arbitrarily establish single-- sole, ret! us facts si. owing contributwhere the evidence admitted by plaintiff clearly o( sole proximate cause. It is ing or concurrent causes that defy any concept was aggravation. This rules there that conceded under plaintiff's own evidence out "aggravation'1 cases upon which ii relies if Thompson be cornet, and pre- particuvents Thompson Ironi being any kind of authority on plaintiff's behalf, of lnct when it is defendant's larly when we clearly said there was an issue contention that even if plaintiff's disability were the result of accidental means, he was suffering from prior disabilities which coupcjjijyd wjth ill? alleged accidentTand therefore Ihe accident cannot be considered the sole cause or a tion. If there were none U would be a flalntifi TfyidTnce showTaggr.-ivfydifferent case, - hut plaintiff cites cases for recovery where admittedly it lu-ar- -' existed. undis-cernib- I In Whitlpck. the insured bought an accident policy cont.nnmg a menial or bodily sickness specific exclusion for injury resulting "from any in die instant case which involved or disease, " as contrasted with the policy had no such exclusion, and which provided coverage allmnatively only, for "loss directly and independently of nll other a uses and effected solely through an accidental bodily injury." The facts in the Whitlock case, as contrasted autowith those in the instant case, reflected tin instantaneous, split second a was mobile crash, which in the common understanding of most, everyone, conwhich everyone in ihe case pure and simple "accident," an "a : idertf' was not ceded was an accident, - whereas in the instant case the the conceded or admitted, but was the cnto statin liliii, so In speak, where inin the first instance. The question of accident was contested vigorously " but admittedly was shown to be noth- -' cident was claimed to be an "accident, sudden at all, such as was the case in the Whitlock crash. le and to continue the logic, to say that that which is excluded, makes everyincluded thing else included, and that that which is not expressly included, is because it was not excluded We do not say the Whitlock case supports either side's contention, hut simply that it is different from and not apropos here as being ana logistic. The Dienes rase is cited, seemingly, for: 1) Approval of the rule "slriclissimi juris" about which we have spoken and with which we have no the terms quarrel; 2) questioning the advisability of instructing the jury about of Ihe policy, which is inapropos' here; and 3) permitting the jury to interpret the terms of the policy. This author does not think the defendant's citation of this case has anything to do wjth the fundamental thrust urged here. The case almost reprimanded the trial court for not resolving issues for the jury before the case's submission, and for not handling the matter with due respect to the and now prerogatives of the jury, a conclusion with which this author agreed to or conforms. The-- plaintiff does not point out any responsive challenges The matter involved respondence to the theory of and law of the case in Dienes. therein seems to be correct but academic, procedural and corrective, but not dispositive here. Reverting to our observations before reviewing defendant's authorities our argument about transmutation of an "accident" to a "health and accident," or life insurance" policy, we suggest that the thought herein expressed, better may have been enunciated in Smith v. Continental Casualty Company, a case involving a commercial accident policy, where the assured had a history of arteriosclerosis, as here, and where the court, as a matter of law determined that there was no "accident" in the common connotation of that term where "exertion" preceded a heart attack, the court saying that there was "clearly no jn the common acceptance of that term" that accident (citing a dictionary) hiB movements at work on the day ituquestion and thereby pro"interfered with duced a bodily injury which was the sole, exciting, efficient and predominant cause of death of the insured who was normally performing the duties of his employment, " and that "the fact that the exertion had an aggravating effect upon arteriosclerotic heart disease did not make a heart weakened by the heart attack an injury arising out of an accident. " pre-existi- ng Our own Tenth Circuit Court in affirming a case going up from our sister state of Oklahoma, had something to say about cases like this, where ur riro pronoun-,-- ' dty its rr negation ot liability under a commercial insurance contract whose language was almost identical to that in the instant case was apparent. 20 There the insured, 64, fell while walking to the bathroom aided he by a stroller, in which his (the insured's) robe became entangled, whence struck his head on a cement floor. His personal physician testified pretty milch as the physician did about Judge Elton here, that the immediate cause of death was "congestive heart failure, " but that "however, the fall produced " a thrombosis which placed a strain on the heart. rial court, as a matter of law, said there was no liability under the policy under such circumstances, and took the case away from the jury The appellate court had this to say, with which with a directed verdict. we agree, as being the sensible, logical, interpetive contractual conclusion in cases like this that- The i The applicable law is that of Oklahoma, and the Supreme Court of that State has on numerous occasions construed language such as that which appears in the instant policies. Generally speaking, Oklahoma has followed the general accepted rule that where the insured is afflicted with a disease or infirmity which substantially contributes to death or inof a policy jury, the death or injury is not within the coverage which insures against death or bodily injury by accidental jiieuo, illicit and independent of other causes. ' find J iiompson cause independent of all other causes of his disability. been tried and the facts showed no concurrent.' ol causes. Thompson - as the could have won. 11 they showed such concur re in ol causes, facts in the instant case do on evidence produced by the plaintiff itself, have to lose under the (and in spite of what the jury found platniitt would irYPf y language of Thompson which cone eded facts and our language, would compel a judgment as a mailer of respective of what the jury did, ol the in:. in ante law, that there was.no liability under the clear language to which wc subscribe, with an policy involved here. This is the result affirmation of Thompson as supportive of this decision, and not. at all a case supporting plaintiff's contentions. iUg such as a sudden blow, r an airplane crash, or on one's brick head, or a fall in the bathtub, or a slip on an falling of slick ice, or a tumble from a haystack, or a misguided dart in the eye, or a hand in the wringer and the like. Such last mentioned incidents clearly are accidents under accepted interpretation of the word "accident," and may require debatable proof to convince a jury as to whether or not there was such a sudden bolt of lightning, an air crash, an unexplained, unanticipated pratfall, inslanter, - as was the case in Whitlock, .where one admittedly suffering from a probable terminal cancer, appears to have sustained a completely independent, unconnected brain concussion, hemorrhaging and swelling in a crash tn which one person was killed outright after To cite the Whitlock case (11 of which the insured died in less than a month. in support of recovery under the terms of the policy in the present case on the basis of jury jurisdiction would seem to do injustice to appellate review, to our everyday language, to tjie concept that the clear connotation of an "accident" policy cannot w;urp itself into an unclear inclusion of almost any "cause, " - or that the payment of a comparatively small insurance premium for "accident" compensation, includes that which is not included as an express exclusion, and includes that which, because of exclusion, is included, a The United States District Court of the District of Columbia22 had a similar problem, where a woman having a previous heart trouble history was denied recovery by her representatives under a commercial accident policy a hour rainhaving a provision like that m the instant case, where in storm, having experienced exposure to it, worry and emotional upset and stress incident to it, she suffered some damage, the appellate court, speakwith us that: ing through Holtzoff, District Judge, agreed 2-- 12 at the testimony from the standpoint most favorable to the deceased, her heart condition became seriously aggravated, and if there was a physical injivy to the heart at the time, it was caused as a result of the exposure to the 18. Disl. of Col. Ct. App. , 203 A. 2d 168 (1964). ex19. Wcbstors New World Dictionary: "Accident: A happening that is not Budden or pected. foreseen or intended; an unfortunate occurrence " mishap; in physical injury. fall, collision, etc., usually resulting 20. T3ewley v. Am. Home Assur. , 450 F. 2d 1079 (1971), where the policy an accident occurprovided that: "'Injury' . . . means bodily injury caused by and independently of all other causes in loss . ring . . - and resulting directly F.noking 788 (1971, 10th C.C.A.). 443 Love v. Am. Cas. Co., 202 F.Supp. 47 (1961), not necessarily dispositive but cited for a general statement of the law on this subject. storm, and the worry and emotional upset and stress and strain that accompanied this drive for two and a half hours through the rain storm. The Court is of the opinion that this was not an accident within the proper meaning of that term as used in this policy. It is not a condition of 'a type that could have befen contemplated by a policy of this kind. 21. 22. F-2- |